ABSTRACT
As is outlined in Chapter 1, the history of the clash between the Turkish government and the Kurdish people in southeast Turkey is a long and complex one and has escalated again in recent years. The analysis in this chapter discusses the legal framework surrounding the military clashes between the Turkish army (together with Turkish security forces) and the Kurdish insurgents, particularly the Kurdistan Workers Party (PKK), which has been ongoing since 1984. The international treaties and customs governing armed conflict will be discussed with respect to the classification of an armed conflict and conduct of the use of force – in traditional international law terms – the jus in bello. First and foremost, this chapter examines the key threshold question – has the long-standing insurgency in southeast Turkey risen to the level of an armed conflict? This discussion will involve an examination of the rather limited treaty law in this area and the more extensive international law literature debating this important topic. Classification of an insurgency as an armed conflict is not only a politically charged topic, but a major unresolved controversy in public international law. It is by no means clear how an insurgency crystallizes into armed conflict. However, once a situation becomes an armed conflict a host of legal questions emerge, and these are also introduced in this chapter. Second, once the threshold of armed conflict has been reached, the next
critical issue is the classification of the armed conflict. It is essential that the armed conflict be classified as either an international or non-international armed conflict as each attracts different international treaty regimes. In these circumstances there may be three different types of armed conflict that could be taking place separately or in tandem. One choice is that the long-standing insurgency in southeast Turkey with the involvement of Turkish security and armed forces and the PKK (and other groups including the Kurdistan Freedom Falcons), could be categorised as a non-international armed conflict. However, it must be noted that there is the contrasting Turkish position that the PKK and other insurgent groups are terrorists engaged in criminal behaviour and therefore are to be dealt with by domestic criminal law. At the other end of the spectrum, there is a possible international armed conflict taking place sporadically in Kurdistan, Iraq between
the PKK and the Turkish armed forces with the jus ad bellum issue of legality of an invasion of another sovereign state involved, which is discussed in Chapter 5. Furthermore, in Additional Protocol 1 to the Geneva Conventions of 1977, the applicability of this convention protecting victims of international armed conflicts includes wars of national liberation.1 Even though the provision is not applicable to this situation as Turkey is not a party to the Additional Protocols, it is necessary to consider whether this provision could be customary international law. There is a half way position of an internationalised armed conflict where an
internal armed conflict spills over into the territory of another state but with an additional requirement that another state becomes involved in the internal conflict by such methods as supplying military aid, or in this case supplying intelligence information for targeting. This chapter surveys the applicable laws of armed conflict for each scenario. A common factor between both the situation in southeast Turkey and Kurdistan, Iraq is the denial by the Turkish government of the existence of an armed conflict. However, any such denial is not in itself determinative of the situation and this chapter discusses the ongoing debate as to criteria for armed conflict. As a third task in this chapter, there is a brief introduction to the discussion
of the large body of law that will govern the conduct of any armed conflict found to exist – the jus in bello known as international humanitarian law. The problem is that there are two separate legal regimes governing international and noninternational armed conflict although there is a live debate that the two types of conflict should be merged and governed by the same international humanitarian rules.2 After the introduction of this important topic, Chapters 3 and 4 deal in more detail with the most important aspects of international humanitarian law applicable to this conflict; the minimum humanitarian guarantees primarily incorporated into Common Article 3 of the Geneva Conventions of 1949 if this is a non-international armed conflict and the specific treatment of belligerents which is one of the most controversial issues in armed conflict.3
